Bowman v. Eppinger
| Decision Date | 01 April 1890 |
| Docket Number | 6731 |
| Citation | 44 N.W. 1000,1 N.D. 21 |
| Court | North Dakota Supreme Court |
APPEAL from district court, Stutsman county; Hon. RODERICK ROSE Judge.
This was an action for money loaned. It appeared from the evidence that one Newhauser procured the loan, and the contention of plaintiff was that he procured it as agent for defendant. The defendant contended that Newhauser had no authority as agent to borrow money.
Reversed, with costs, and a new trial ordered.
S. L Glaspell, Esq., for the appellant, argued that the evidence failed to show that plaintiff was administratrix; citing Wittman v. Watry, 37 Wis. 238, that Newhauser, as general manager of defendant's business, had no implied authority to borrow money, citing Mechem on Agency, § 399; Bickford v. Menier, 107 N.Y. 490; Bank v Ins. Co., 103 U.S. 783; Wood v. Goodbridge, 52 Am. Dec. 771; Spooner v. Thompson, 48 Vt. 259; that the evidence of Newhauser's authority was limited to his own representations and to statements of others that he had at other times borrowed money for defendant; that such evidence was improperly admitted, it not being shown that defendant was cognizant of such acts, citing Compiled Laws, § 3981; Graves v. Horton, 35 N.W. 568; Law v. Stokes, 90 Am. Dec. 655.
Messrs. Nickeus & Baldwin, for respondent, argued that Newhauser was in the habit of borrowing money to use in defendant's business, and of repaying it with checks signed with defendant's name, which were afterwards returned to defendant after they had been cashed. That plaintiff having relied upon these facts as showing the agent's authority, the defendant is estopped to deny such authority, citing Kingsley v. Fitts, 51 Vt. 414; 1 Am. Dec. 425; and other cases.
A petition for a rehearing filed by respondent was denied.
BARTHOLOMEW, J. Plaintiff sued as administratrix and alleged--First, her representative capacity; second, "that on the 9th day of December, 1887, she loaned the defendant, for his accommodation, through his agent, Ferdinand Newhauser, and at the request of the defendant, and without any time being agreed upon for payment," a certain sum of money; third, demand of payment, and refusal. The answer puts in issue every allegation of the complaint.
After the jury had been sworn, and when the first witness was produced, the defendant objected "to the introduction of any evidence under the complaint in this action; for the reason that the facts therein stated do not constitute a cause of action." The objection was overruled, and this ruling is assigned as error. The ruling cannot be reviewed: for the reason that proof was introduced tending to establish the facts not alleged, and no objection was made to such proof because of such insufficient allegation. Learned counsel probably had in mind the fact that there was no specific allegation that plaintiff loaned the money as administratrix. When proof of that fact was offered, he should have made his objection for that reason. His general objection does not reach the point, and the proof being received without objection cures the defect in pleading, if any. Thoreson v. Harvester Works, 29 Minn. 341, 13 N.W. 156; Isaacson v. Railroad Co., 27 Minn. 463, 8 N.W. 600.
Thirteen errors are assigned upon the rulings of the court on defendant's objections to testimony. These errors need not be reviewed in detail or the evidence reproduced. They are all comprehended in one of two classes: First, where plaintiff sought to prove specific acts or statements of the alleged agent, Newhauser, before the agency had been established. These went simply to the order of proof, and were clearly within the discretion of the court. Com. v. Dam, 107 Mass. 210; Hutchins v. Kimmell, 31 Mich. 126. The second class were instances where plaintiff sought to prove that Newhauser had borrowed money of other parties for defendant with a view to showing authority in Newhauser to borrow money. It was the expectation of the learned judge of the district that these transactions would be brought to the subsequent knowledge of defendant; and, indeed, such was the effort of plaintiff's counsel. Under such circumstances, the objections went to the sufficiency and not to the competency, of the proof, and were properly overruled.
When plaintiff rested in chief, defendant moved the court to instruct the jury to return a verdict for defendant assigning as reasons therefor that "there is no evidence showing that Ferdinand Newhauser had any authority from defendant to borrow money on his credit, and that there is no evidence in the case showing that defendant authorized, or had any notice or knowledge of the fact of this loan, nor authorized the same, directly or indirectly. " The motion was overruled, and this ruling is assigned as error. When his motion was overruled, defendant proceeded to introduce his testimony, and make his...
To continue reading
Request your trial